Folia Theologica et Canonica 6. 28/20 (2017)
IUS CANONICUM - José Miguel Viejo-Ximénez, Raymond of Penyafort decretalist
142 JOSÉ MIGUEL VIEJO-XIMÉNEZ exceptionis, a way of asking the judge to declare inadmissible an accusation or a testimony. Then Raymond describes the distinctive traits of the inquisition, that is. the procedure for the crimes known from clamore et fama : the defendant must be present, unless he has been declared in contempt; to ensure his defence, he must know the capitula that are subject to inquisition, and the name of those who have defamed him; and finally the judge must move to the place where the person who is under inquiry lives to investigate his life and reputation (fama). Only after taking these cautions, may the judge - inquisitor sign a conviction if sufficient evidences have been gathered. But if the judge is not certain of guilt, and the bad reputation persists, the defendant is to be summoned to a private meeting and then to another public one before witnesses to try to modify his behaviour and. thus, remove the discord (clamor) surrounding his person87. Thanks to the SdC the five-fold division of criteria of the just war -persona, res, causa, animus, auctoritas- entered into general use. The formula, set up by Laurentius Hispanus and adopted by Johannes Teutonicus in his Glossa Ordinaria to the DG, was expanded by Raymond under some of the various requirements: the person (persona) waging the war had to be a Christian layperson (Gloss. Ord. to C.23 q.2 / SdC), or a cleric «in necessitate ineuitabile» (SdC 2.5.12); the object (res) of the war had to be either the recovery of stolen goods or the defense of the homeland (Gloss. Ord. / SdC); the necessity of waging the war (Gloss. Ord. / SdC) constituted the just cause (causa): the just intention of the belligerent (animus) excluded the desire to punish (Gloss.), as well as hatred, revenge and passion (SdC), and implies piety, justice and obedience (SdC); the war had to be waged on princely authority (auctoritas) (Gloss. Ord. / SdC) or on ecclesiastical authority when fighting faith (SdC)88. 5. lus Commune and Canon Law Ratio and auctoritas. Although Raymond did not cooperate with the first editors of the Libro de las Leyes (the Siete Partidas or Seven-Part Code, c. 1255-1263), they or the consecutive teams of experts, used the first three parts of the SdC for the composition of the Primera Partida. This is suggested by the parallels bet87 Cf. Minnucci, G., Istituti di diritto processuale nella ‘Summa de poenitentia et de matrimonio’ di san Raimondo di Penyafort, in Longo, C. (a cura di), Magister Raimundus, 87-109. 88 Cf. Russell, F. H., The Just War in the Middle Ages, Cambridge 1975. 128-129; the author analyses other teachings of the SdC on the role of the Church in war (pp. 190-191 ), the conduct of war (pp. 156-160, 185-187), the consequences of war (pp. 165-166), and the crusades (pp. 203-204, 207-209). Cf. also Valls i Taberner, F., El problema de la licitud de la guerra según San Rámán de Penafort, in Mélanges Altamira, Madrid 1936. 160-183 (= San Rámán de Penyafort, Barcelona 1998. 201-213).
